Waldroup v. Dravenstott, WD
| Decision Date | 14 April 1998 |
| Docket Number | No. WD,WD |
| Citation | 972 S.W.2d 364 |
| Parties | George W. WALDROUP and Bettie Waldroup, Respondents, v. Lonnie DRAVENSTOTT d/b/a L.D. Construction, Appellant. 54085. |
| Court | Missouri Court of Appeals |
Timothy D. Tipton, Excelsior Springs, Bruce B. Brown, Kearney, for Appellant.
K. Colleen Nunnelly, Liberty, for Respondents.
Before ULRICH, C.J., P.J., and LOWENSTEIN and HOWARD, JJ.
This is an appeal from the trial court's judgment in favor of George and Bettie Waldroup on their action against Lonnie Dravenstott for breach of a contract to construct a workshop and failure to comply with the applicable building codes. Dravenstott raises three points on appeal. First, he contends that the trial court erred because the evidence indicates that he constructed the building in accordance with the contract and a plan provided by George Waldroup. Second, he contends that the Waldroups waived all alleged breaches in the contract. Third, he claims the trial court erred in awarding the Waldroups an attorney's fee, prejudgment interest, and a per annum inflationary rate on the damage amount.
On October 25, 1994, Appellant Lonnie Dravenstott, d/b/a L.D. Construction, and Respondents George and Bettie Waldroup signed a proposal wherein Dravenstott would build a "64 by 30 workshop" for a total cost of $18,497.62. Mr. Waldroup had previously done some site preparation, including some grading, filling in gravel, and setting some of the outside posts for the walls. Construction began in November 1994, and shortly thereafter Mr. Waldroup paid Dravenstott the front half of the cost, or $9,248.81. Upon Dravenstott's presentation of a final bill, Waldroup paid the full amount due.
At trial, Mr. Waldroup testified about numerous complaints involving the construction of the building, including failures to put in two-by-sixes for the rafters or space the two-by-fours two feet apart, and to put studs in the walls for stapling insulation and hanging sheetrock. Waldroup testified that the windows were not properly installed, the ceiling rafters were cut too short, the roof was bowed, and birds, bees, and bugs would come in through the spaces between the walls and the roof. He also testified that he is unable to use the building when the wind is blowing or if it is raining, and he is unable to use the second floor of the building. He testified that when the wind blows, "the place shifts and it squeaks and rattles," and when it rains the roof and the windows leak. He testified that he complained to Dravenstott about these deficiencies during each stage of the construction, but that Dravenstott would not listen to him and would make various comments, such as "That's good enough," and "It ain't nothing but an old barn anyway," and "What difference does it make?" When asked on cross-examination about his reasons for paying Dravenstott despite his dissatisfaction, Waldroup testified that he was afraid that if he did not pay, Dravenstott would have caused him physical harm.
Waldroup testified that he tried to get Dravenstott to repair the building, to no avail. Waldroup testified that Dravenstott promised to return to fix the leaks when the weather cleared up, and he did return, but when it began raining he left with another promise to return. Waldroup also testified that Dravenstott crammed insulation in the spaces between the walls and the roof.
Mr. Waldroup retained Charles Logan, a civil engineer, to inspect the building in order to identify various alleged deficiencies. Logan alleged numerous defects, including the failure to put two-by-four trusses or two-by-sixes on twenty-four inch centers in the roof and an overhang completely around the building. He testified that the roof was noticeably bowed, and when the wind was blowing it vibrated and shook noticeably. He also stated that wood intended to be used only in a stud application was used in the roof rafters. He testified that the ceiling joists were all cut short, and there were spaces between the roofing and the load-bearing wall. He testified that the ceiling joists were not sufficient for the intended loads that would be placed on them, and that the building flexes and moves when the wind blows and when the temperature changes. Logan concluded that the building was not structurally safe and he estimated the life expectancy of the building to be "maybe two to three years." Logan's opinion was not based on the building contract between Dravenstott and the Waldroups.
Mr. Waldroup obtained a bid from Marvin Fruits, a carpenter, to "correct the problems and finish the project" at a cost of $15,700.00. Fruits testified that Waldroup requested an estimate as to "what it would take to make his shop useable to insulate" and to sheetrock. Upon his inspection of the building, he concluded that the building techniques appeared to "have been intended for a hay barn" and that the building "might have passed as a hay barn." He testified that the lumber used was a stud or utility grade. He testified that the structure is not strong enough to withstand the shop upstairs or the wind. Fruits submitted a proposal to Waldroup, which included putting in studs for insulation and sheetrock and adding ceiling joists and rafters. Fruits estimated his labor at $350.00 per day for twenty-five days, totaling about $8,750.00. Fruits acknowledged that he had not reviewed the building contract between Dravenstott and Waldroup. His proposal was based on what Waldroup told him.
Testifying on Dravenstott's behalf were Robert Quick, a civil engineer, William Morrow, the supplier of the construction materials, and Dravenstott himself. Quick testified that he reviewed the building contract and the plan and inspected the building on two occasions. He testified that in his opinion, the building was constructed in accordance with the contract and plan and that the building was "structurally sound for its purpose." Quick described the purpose as "a barn to use as a workshop, shed, storage at this point."
Morrow was the owner and manager of Morrow & Sons Lumber Company in Lawson. He supplied and delivered the lumber and other materials to the job site and identified six invoices reflecting those materials and the cost. Morrow inspected the building when Waldroup claimed the No. 3 materials were used. During his inspection, Morrow located numerous pieces of lumber having a No. 2 stamp. He also located some without such stamps, but stated that these boards were probably on the low end of No. 2 or better, which will "happen in some bundles."
Waldroup also had pointed out to Morrow one board on a side wall that had been burned. Waldroup was concerned that he had gotten forest fire lumber in his boards. Morrow could not explain the presence of the black char, but he did testify that forest fire lumber is not allowed to be cut, that it "should not have been in there if it was shipped from me," and that he didn't know whether the charring had occurred prior to or after construction.
Dravenstott testified that he had been a carpenter for about twenty-eight years, doing all kinds of construction work, including remodeling, building new houses, pouring concrete, and plumbing. The Waldroups' building was the first building of that type he had constructed. In his dealing with Mr. Waldroup, Dravenstott used a plan, consisting of two sketches, to put together his proposal. Based on his conversation with Waldroup, Dravenstott concluded that he would do a "rough-in job." After beginning his work, Dravenstott encountered various problems, including some of the outside posts being warped or too short. He also had to grade the ground inside the building site to level it, which caused some of the posts to be shorter than the rest. The differences in height of these posts also required Dravenstott to build a short wall to make the roof level.
When questioned about his awareness of Waldroup's dissatisfaction with his work, Dravenstott testified that Waldroup never complained and that he was unaware of any problems until he was served with the petition. Dravenstott also denied having any detailed discussions with Waldroup about his intended future use of the building and claimed that he simply followed the plan provided by Waldroup.
The trial court entered judgment for the Waldroups. This appeal followed.
We will affirm the trial court's judgment when substantial evidence supports it, it is not against the weight of the evidence, and the trial court correctly declares and applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We will set aside the trial court's decision only when firmly convinced that the judgment is wrong. Lenger v. Lenger, 939 S.W.2d 11, 13 (Mo.App. W.D.1997).
Dravenstott's first point on appeal is that the trial court erred as a matter of law because the judgment is against the weight of the evidence and because several key findings of fact are not supported by the evidence. Dravenstott contends that the evidence does not support the Waldroups' allegation that he breached the construction contract by constructing a building that was not in accordance with the provisions of the contract and local and state building codes. Instead, Dravenstott contends, the credible evidence indicates that he constructed a building in accordance with the building contract and a plan provided by Mr. Waldroup.
We first address whether Dravenstott breached the contract. In this case, the contract contains an express warranty that all work is "to be completed in a workmanlike manner according to standard practices." Workmanlike performance has been defined as "work which is completed in a skillful manner and is non-defective." Jake C. Byers, Inc. v. J.B.C. Investments, 834 S.W.2d 806, 818 (Mo.App. E.D.1992).
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